Bale v Mills

The appeal concerned a dispute between Bale and Mills, heard in the Court of Appeal of New South Wales. The primary judge had made adverse findings of credit against the appellants, which formed a fundamental basis for the decision.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their assessment of the credibility of a witness, particularly in light of a breach of the rule in *Browne v Dunn*, and whether inferences of dishonesty or deliberate concealment could be drawn to the *Briginshaw* standard when the witness had not been cross-examined on those specific issues. The Court also considered its entitlement to disregard supplementary material filed after the hearing, beyond the terms of leave granted.

The Court found that the primary judge had erred in their assessment of factors fundamental to the adverse finding of credit. It held that a failure to object to a breach of the rule in *Browne v Dunn* does not amount to a waiver of the rule. Furthermore, the Court determined that an inference of dishonesty or deliberate concealment of error could not be drawn to the *Briginshaw* standard in circumstances where the witness was not cross-examined on the relevant issue. The Court also noted its entitlement to disregard supplementary material filed beyond the terms of leave.

Consequently, the appeal was allowed, the orders of the District Court were set aside, and a new trial was ordered. The costs of the District Court proceedings were to abide the outcome of the new trial, and the respondent was ordered to pay the appellants' costs of the appeal.